Douglas v. Kriegsfeld Corp., 02-CV-711.

• Decision Date: 13 October 2005
• Docket Number: No. 02-CV-711.,02-CV-711.
• Citation: 884 A.2d 1109
• Parties: Evelyn DOUGLAS, Appellant, v. KRIEGSFELD CORPORATION, Appellee.
• Court: D.C. Court of Appeals

884 A.2d 1109

Evelyn DOUGLAS, Appellant, v. KRIEGSFELD CORPORATION, Appellee.

No. 02-CV-711.

District of Columbia Court of Appeals.

Argued En Banc November 1, 2004.

Decided October 13, 2005.

Barbara McDowell, with whom Julie H. Becker and Tamara Jezic, The Legal Aid Society of the District of Columbia, and Patricia Millerioux, Neighborhood Legal Services Program, were on the brief, for appellant.

Timothy P. Cole for appellee.

Michael L. Murphy and David T. Beddow filed a brief for Amicus Curiae Law Students in Court.

Susan Ann Silverstein, Rochester, NY, Rhonda Dahlman, and Michael Schuster, Washington, filed a brief for Amicus Curiae American Association of Retired Persons.

Michael Allen, Washington, and Amber W. Harding filed a brief for Amicus Curiae Bazelon Center for Mental Health Law, Washington Legal Clinic for the Homeless, National Fair Housing Alliance, and National Alliance for the Mentally Ill.

Richard W. Luchs and Roger D. Luchs, Washington, filed a brief for Amicus Curiae Apartment and Office Building Association of Metropolitan Washington.

Susan Ann Silverstein and Michael Schuster, Amicus Curiae AARP Foundation Litigation, and Rhonda Dahlman, Amicus Curiae for Legal Counsel for the Elderly, filed a brief.

Before WASHINGTON, Chief Judge,¹ TERRY, SCHWELB, FARRELL, WAGNER,² RUIZ, REID, and GLICKMAN, Associate Judges, and FERREN, Senior Judge.

FERREN, Senior Judge:

This case presents the question under the federal Fair Housing Act whether the trial court erred in denying a tenant the opportunity to defend her landlord's action for possession by claiming discrimination—namely, the landlord's failure to provide a "reasonable accommodation"—based on her alleged "handicap" (mental impairment). We disagree with several of the trial court's rulings and thus reverse and remand the case to the trial court for further consideration of the tenant's request for accommodation. It is important to note, before proceeding, that although four colleagues have either written or joined in dissenting opinions, all of them except for Judge Schwelb subscribe fundamentally to virtually all the legal principles elaborated in this opinion for the court. The difference between the majority and three of our colleagues, as expressed in Judge Glickman's dissenting opinion, lies in applying those principles to the facts.

I.

Evelyn Douglas (tenant) receives federal Supplemental Security Income (SSI) benefits and is eligible for federally subsidized "Section 8" housing. On August 23, 2001, Kriegsfeld Corporation (landlord) served her with a thirty-day notice to "cure or quit" for violation of her lease covenant to "maintain the apartment in clean and sanitary condition." Later, at trial, the landlord presented evidence that the apartment had a foul odor emanating into the rest of the building; that the toilet was frequently filled with feces and urine; and that garbage, rotting food, and dirty laundry were strewn about. An exhibit to the tenant's earlier, unsuccessful motion for summary judgment confirmed that as a result of this situation the landlord's representative, Ms. Deborah Reid, had referred the tenant to St. Elizabeths Hospital for a psychiatric evaluation.

The tenant neither cleaned up nor vacated the premises, and the landlord accordingly filed an action for possession on November 30, 2001. Through counsel, the tenant filed a timely answer and asked for a jury trial. Her answer included a general denial, a challenge to the validity of the notice to cure or quit, a defense of discrimination under "the federal Fair Housing Act and local fair housing laws," and a counterclaim of discrimination under "the Fair Housing Act and D.C. Human Rights Act."³

Soon thereafter, on February 5, 2002, counsel for the tenant sent a letter to the Director of the Department of Consumer and Regulatory Affairs (DCRA) "requesting a reasonable accommodation under the Federal Fair Housing Act" for a "disability (mental)," namely a "mood disorder," that affected the tenant's ability to keep the apartment "safe and sanitary." Counsel added: The "District of Columbia Government is prepared to assist her with cleaning the apartment." DCRA never took action.⁴ On February 20, 2002, two weeks after his letter to DCRA, counsel for the tenant wrote counsel for the landlord "requesting a reasonable accommodation in complying with provisions of [the tenant's] lease." In this letter—filed with the trial court as Exhibit 2 to the tenant's motion for summary judgment and discussed in counsel's supporting memorandum—counsel explained the basis for an accommodation as follows:

Ms. Douglas suffers from a mood disorder (mental illness). She is on SSI disability. She has been assigned a case worker with the District of Columbia government and she is an outpatient at a city operated mental health/substance abuse clinic.

... The District of Columbia government has advised me that they are prepared to assist her with her problems because it is their opinion as well that Ms. Douglas would benefit from intervention and a reasonable accommodation.

Counsel, however, did not describe the type of accommodation sought or the assistance that the District of Columbia government would offer. According to counsel for the tenant's uncontradicted assertion in the trial court, landlord's counsel—who has acknowledged receipt—never responded to this letter.

Later, at a pretrial conference, the court asked for briefs on the question whether the tenant should be permitted to present her discrimination defense based on the landlord's failure to make a "reasonable accommodation" of her alleged mental disability.⁵ Thereafter, the trial court denied the tenant's motion for summary judgment, and on the day set for trial, June 17, 2002, the court heard testimony and argument on the reasonable accommodation issue prior to selection of the jury. The trial court conducted this hearing primarily to find out whether the tenant's proffered "mental health experts"—D.C. government employees James Sutton of the Department of Mental Health and Damon Byrd of Adult Protective Services—were qualified to testify, and whether their testimony would support a finding that the tenant's mental illness caused her to leave the apartment in an unclean, unsanitary condition, a finding the court believed was required to support a "reasonable accommodation" defense.

After the tenant's proffered experts had testified, but before the trial court ruled, the landlord's counsel acknowledged to the court that counsel for the tenant (presumably sometime after his letter of February 20) had requested, as an accommodation, a stay of the eviction proceeding—i.e., a stay of the action for possession—that would permit an agency of the D.C. government to "clean up" the apartment, which the "government had promised" to do. The landlord's counsel further acknowledged: "I did not specifically talk to [tenant's counsel] about that until a couple of weeks ago," around the first of June 2002, "when I told him that his proposal simply lacked any specifics for us to really make an evaluation on." Landlord's counsel added his opinion that tenant's counsel "had no authority to speak for the D.C. government," and thus could not assure that the apartment would be cleaned or, if so, how long it would stay that way. Landlord's counsel eventually communicated his position to tenant's counsel on June 14, three days before trial: "We are willing to allow Ms. Douglas to stay in the unit through the end of August, the beginning of September, but the landlord would definitely request possession of the unit after a period of time"—whether the apartment was clean or not. Counsel then stressed: "They [i.e., the landlord] don't see there's any way to get around or to accommodate Ms. Douglas in this matter to allow her to stay."⁶

The court was troubled that no one at the hearing had asked the tenant's experts, who were in a position to know, exactly "what the possibilities [were] for Adult Protective Services to do cleaning of this apartment." Whereupon counsel for the tenant represented to the court that the D.C. government had a fund for paying contractors to clean apartments of needy persons (most typically the elderly, including those suffering from Alzheimer's disease) on an "ongoing" basis; that his witnesses, Sutton and Byrd, could "satisfy" the landlord that the D.C. government would "get the place cleaned up" in this case; and that if, because of the tenant's mental condition, communication with her became too difficult, he was in a position, with the help of Sutton and Byrd, to pursue a conservatorship that would be able to "take action" on her behalf with respect to the apartment. Counsel stressed, however, that the District government would not incur the cleaning expense without assurance that the tenant could remain in her apartment; the District would not restore the apartment merely for the landlord's benefit.

Accordingly, it was clear to everyone that the tenant was seeking, as a "reasonable accommodation," a stay of the eviction proceeding for a period long enough for the District government to clean the premises and thus cure the tenant's breach of the lease. Counsel also proffered both the resources and the willingness of a D.C. government agency, Adult Protective Services, to keep the premises clean. Significantly, moreover, counsel for the tenant was unequivocal in conceding that if the requested delay, coupled with government intervention, "didn't work out"—meaning that if the apartment became filthy again (presumably because the government failed to continue its cleaning services on the tenant's behalf), the landlord would have an acknowledged remedy, eviction. According to counsel, a reasonable accommodation, once given, need not be repeated if the tenant or her government protector failed to comply with its terms.

In sum, the tenant was asking initially for a brief stay of the eviction...